Quinn v. County Commissioners

Menchine, J., delivered the opinion of the Court. Piecemeal rezoning of land from commercial to residential use is of signal rarity. This is such a case. The “blessings and the burdens” of Village of Euclid v. Ambler Realty Co. 1 came late to Kent County.

Original zoning came in 1960; comprehensive rezoning in 1969. The subject appeal attacks the validity of piecemeal reclassification in 1972 of lands zoned B-l (Neighborhood Business) to R-l (Single Family Residential). We reproduce partially Map No. 7 of the 1969 comprehensive rezoning of the area, whereby the subject land (shown cross-hatched) had been placed — for the first time — in a commercial zoning classification. ^{415 416} The County Commissioners of Kent County, acting under its statutory power to rezone, granted the application restoring to the tract the residential classification that was its zoning before the 1969 ordinance. The Circuit Court for Kent County affirmed that decision.

This appeal by a property owner affected by the change contends that the evidence produced before the County Commissioners was insufficient to permit piecemeal reclassification. He maintains that neither change of conditions nor original mistake in the B-l zoning classification had been shown. Appellees concede that there is no change in the area such as would permit or justify reclassification. They urge, however, that the evidence shows beyond question that the zoning classification B-l applied to the subject tract in 1969 was the product of manifest error or mistake.

It will be observed that the property in question has a frontage of about 750 feet on the east side of Route 213, with, an irregular depth ranging between 135 to 150 feet. The B-l zoned area extends south from the Sassafras River. It is carved from and is bordered on the east by residential zoning for thousands of feet. Route 213, in its course south from the Sassafras River rises precipitously, peaking at or near the southernmost line of the west side commercial zoning.

From that point, a reverse slope carries Route 213 toward the town of Galena, about one mile away. At the northeast and northwest corners formed by the bridge crossing the Sassafras River (both in Cecil County) are respectively, a restaurant known as “The Granary” and the Sassafras Boat Company. The southwest corner (in Kent County) is now and originally was zoned as a “Marine District” and principally is occupied by the Georgetown Yacht Club. The west side of Route 213, running south from the Marine District is now and originally was zoned B-l.

That B-l zoned area extends from the Georgetown Yacht Club and Marina on the north to the Kitty Knight House, a restaurant, on the south. Between the termini of west side B-l zoning one finds unimproved vacant land with road frontage of 400 feet to a depth of 120 feet. No part of that ⁴¹⁷ B-l reservoir has been utilized for commercial purposes in the nine years between original (1960) and comprehensive (1969) rezoning. Witnesses said this tract provided “plenty of area * * * for such [commercial] development.” The reclassified area encompasses eight separate individual ownerships.

All eight properties in 1960 were and are improved by substantial dwellings. Two of the properties are utilized for marginal commercial purposes, consisting of an antique shop antedating original (1960) zoning (whose owner joined the petition for reclassification) and a “gold fish operation * * * of a miniature nature.” Both businesses are conducted within the original residences. Curiously, none of those eight owners, whether friend or foe of the subject reclassification, was aware that his property had been placed in B-l zoning classification until shortly before the filing of the requested change in classification. Five of those owners favored return to residential zoning.

Three were said to support retention of the B-l zoning. This circumstance, of course, is without legal effect. The cases make clear that “A plebiscite of the neighborhood does not determine zoning.” Montgomery County Council v. Scrimgeour, 211 Md. 306, 313 , 127 A. 2d 528, 532 . The appellant was the only protestant to testify.

An owner of one of the reclassified properties, he did not dispute any of the facts recited by the fourteen witnesses who appeared and testified in favor of the proposed reclassification to residential. He expressed the belief that the change from B-1 to R-l classification would lessen the value of the property because “as a piece of rental property for a residence being as near as it is to the bridge, and noise and other things that have been brought out already, it doesn’t command a very large rental.” He indicated in his testimony that the owners of two other properties within the zoned area shared his views. They did not testify. The only other evidence produced by the protestant was a letter of the Planning Commission reading as follows: “On June 8th, 1972 the Kent County Planning Commission met and examined application ZMA 12 ⁴¹⁸ as submitted by several residents of Georgetown requesting a zoning reclassification on Zoning Map 7.

A substantial change in the area or a mistake in the original zoning are the criteria for rezoning as spelled out by Article 66B, Maryland Planning and Zoning Enabling Act. Neither change nor mistake have been evidenced in the area in question. Therefore, in the absence of justification for rezoning the Kent County Planning Commission does not recommend approval of application ZMA 12.” No reasons for the stated recommendation were given by the Planning Board. Following Northwest Merchants Terminal v. O’Rourke, 191 Md. 171, 191 , 60 A. 2d 743, 753 (change) and Kracke v. Weinberg, 197 Md. 339, 347 , 79 A. 2d 387, 391 (mistake), Maryland developed what has come to be called the “change-mistake rule” to test the propriety vel non of piecemeal zoning reclassifications.

That rule now is firmly fixed in Maryland law and was thus stated in the recent case of Stratakis v. Beauchamp, 268 Md. 643, 652 , 304 A. 2d 244 , 249: “Where a legislative body, or a board of county officials, pursuant to authority conferred upon it, has granted a rezoning of property, the question on judicial review is whether or not such action is arbitrary and discriminatory or fairly debatable, Montgomery County v. Pleasants, 266 Md. 462 , 295 A. 2d 216 (1972); Himmelheber v. Charnock, 258 Md. 636 , 267 A. 2d 179 (1970); Chevy Chase Village v. Mont. Co., 258 Md. 27 , 264 A. 2d 861 (1970); Smith v. Co. Comm’rs of Howard Co., 252 Md. 280 , 249 A. 2d 708 (1969). We shall follow that test in considering this appeal. While, in recent years, we have had occasion to enunciate a number of important principles applicable to the law of zoning, perhaps none is more rudimentary than the strong presumption of ⁴¹⁹ the correctness of original zoning and of comprehensive rezoning.

To sustain a piecemeal change in circumstances such as those present here, strong evidence of mistake in the original zoning or comprehensive rezoning or evidence of substantial change in the character of the neighborhood must be produced, Mayor and Council of Rockville v. Henley, 268 Md. 469 , 302 A. 2d 45 (1973); Heller v. Prince George’s Co., 264 Md. 410, 412 , 286 A. 2d 772 (1972); Creswell v. Baltimore Aviation, 257 Md. 712, 721 , 264 A. 2d 838 (1970). Since, as we have also said, this burden is onerous, Cabin John Ltd. v. Montgomery Co., 259 Md. 661 , 271 A. 2d 174 (1970); Creswell v. Baltimore Aviation, supra; Wells v. Pierpont, 253 Md. 554 , 253 A. 2d 749 (1969), the task confronting appellants, whose application followed the comprehensive rezoning by merely four months, is manifestly a difficult one.” Determination of the subject appeal, accordingly, turns upon a consideration of the facts presented to the County Commissioners as tested by that rule of law. The unincorporated village of Georgetown was described as extending southerly for one-half mile along Route 213 commencing at the Sassafras River bridge. It is said to have a population of 71 persons.

One witness described it as “an historical spot, preserved buildings — you can’t get them back once they are destroyed and gone, it’s all over you know.” A nearby resident, who had been a member of the Planning and Zoning Commission of Greenwich, Connecticut before moving to Maryland, testified that the zoning of the tract should be returned to residential classification. He maintained that the substantially undisputed facts demonstrated clear error in the 1969 rezoning. He pointed out: (a) that both boat yards at the bridge crossing had elaborate shopping centers; (b) that the town of Galena, within a mile of the ⁴²⁰ subject tract, “have practically every type of service that you need;” (c) that all separate ownerships within the commercially zoned area were improved with substantial dwellings, saying “you ought to remember, all of these houses are there now — they are homes, and I can’t understand — it must have been a colossal mistake when in 1969 they just decided to go across the street there. The road is a perfectly good buffer for that B-l zone.” (d) that motor vehicles approaching the area from south to north “get exactly down to this spot, with a complete blind spot as far as what you can see below. * * * [P]eople suddenly come over that crest and then they are going down hill * * * [N]ow if you had business on the righthand side of that road, in the narrow area, I think that it creates a real traffic hazard.

This is not an imaginary thing, it is a real thing, that traffic hazard.” (e) that properties within the area would suffer depreciation in value if the commercial zoning remained. One witness said: “If you go commercial you have got to get rid of the trees, you have got to get rid of the hedges, the houses, and you have to get rid of the people.” Another witness, making reference to the vacant B-l land on the west side of the highway said: “The point is, it is almost ludicrous to consider that there is an area which is virtually identical in size * * * there isn’t a building on it. Why, then do we take the word commercial and put it here when it has already been established and accepted on this [other] side? * * * don’t bulldoze these charming houses down. Don’t destroy the charming little community.” Another said: “I can’t believe anything other than when this was rezoned someone looked at the map and said, there is a river there, and there is four corners, why don’t we put commercial there' and call this commercial.

I don’t think they are on the spot at all. I don’t care if he came from ⁴²¹ Baltimore, or New York, if he was in his right mind he couldn’t say that that was commercial when you look at those houses.” A witness who was a real estate broker, and a lifetime resident of the area, testified that the subject tract contained “very valuable old homes,” the value of which would be depreciated if the B-l zoning classification wrr retained. Another said: “Gentlemen, this area is a residential area, and has been a residential area for over 200 years. Even after the British burned Georgetown in 1812, the residents rebuilt on those same sites, since they were of the opinion, as their forefathers, that this was a residential area.” Photographs of the residences offered mute but graphic confirmation of the witnesses’ descriptive words.

Other testimony related to traffic hazards incident to commercial zoning. (a) That Route 213 at the southern end of the B-l zoning is narrow, with “hardly room for two cars to pass.” (b) “I think there is a definite traffic hazard.” (c) “It is almost like a tunnel — you know, going from the top of the hill, because * * * there’s a stone wall on one side * * * and then there is a bank by the Kitty Knight House, and then that goes straight down and across the bridge, and of course the bridge is confined too, and it is so unbelievably dangerous.” (d) That although a sign on the highway indicates a “school bus stop,” the bus does not stop there “because it is not safe for the bus to stop on 213 * * * because the traffic coming over the hill could never stop * * (e) That “there are blind spots on both sides, but particularly on the right side * * * going north, I watch people come out of their driveways and they almost tremble — you can see the expression of almost fear as they look out and wonder — ‘Can I make it now? ’ ” It was pointed out that the properties on the east side of Highway 213 “are of irregular depth and some of them could ⁴²² still be part residential and part commercial. They are not uniform in any way, yet the [zoning] line apparently shows a uniform parallel line * * • The _ appellant has cited many cases suggested as supporting Ms appeal. These cases are: Zang & Son v. Taylor, 203 Md. 628 , 102 A. 2d 723 ; American Oil Co. v. Miller, 204 Md. 32 , 102 A. 2d 727 ; Baltimore v. NAACP, 221 Md. 329 , 157 A. 2d 433 ; Shadynook v. Molloy, 232 Md. 265 , 192 A. 2d 502 ; Greenblatt v. Tony Schloss Properties, 235 Md. 9 , 200 A. 2d 70 ; MacDonald v. County Board, 238 Md. 549 , 210 A. 2d 325 , Miller v. Abrahams, 239 Md. 263 , 211 A. 2d 309 ; Mack v. Crandell, 244 Md. 193 , 223 A. 2d 248 ; France v. Shapiro, 248 Md. 335 , 236 A. 2d 726 ; Smith v. Board, 252 Md. 280 , 249 A. 2d 708 ; Brenbrook Const.

Co. v. Dahne, 254 Md. 443 , 255 A. 2d 32 ; Westview Park Improvement Ass’n v. Hayes, 256 Md. 575 , 261 A. 2d 164 ; Creswell v. Baltimore Aviation, 257 Md. 712 , 264 A. 2d 838 , and Stratakis v. Beauchamp, supra. Brief quotations from those cases demonstrate that they do not support appellant’s contention. Stratakis, supra, because the evidence consisted of “bald allegations * * * unsubstantiated by facts.” (P. 653 [249]); Creswell, supra, because the evidence consisted merely of an opinion “that one or more lines should have been drawn slightly to the east, the west, the north, the south * * *.” (P. 722 [843]); Westview Park, supra, because the evidence consisted of “an unsupported conclusion.” (P. 581 [167]); Brenbrook, supra, because “there [was] no legally sufficient evidence of original mistake * * *” (P. 450 [36]); Smith, supra, because the only testimony as to mistake was the statement of a realtor that “ * * * I would tend to think that there was a slight mistake when the Zoning Map was adopted * * *.” The Court of Appeals commenting further that the witness “did not present such strong supporting facts other than stating that the property ‘is a corner property and there is a lot of traffic at that intersection, there is also a good sight distance both ways * * *’.” (P.284 [710]); ⁴²³ France, supra, where the only evidence of mistake was a